Radhey Shyam v. Nanak Ram — 1968 DIGILAW 209 (ALL)

JUDGMENT Rajeshwari Prasad, J. - This second appeal has come up for hearing before us as a result of an order of a learned Single Judge of this Court requiring the second appeal to be referred to a larger Bench for disposal. 2. This is a Defendant's second appeal against the judgment of the II Additional Civil Judge, Agra, confirming the decree of the trial court and decreeing Plaintiff's suit for damages. 3. The Plaintiff-Respondent Sri Nanak Ram filed the suit giving rise to this second appeal for recovery of Rs. 1,598/- as arrears of mesne profits, or damages for use and occupation, with the allegation that he constituted a joint Hindu family with his j father Mangoo Mal, who died on 28-9-1959. Thereafter, the Plaintiff became the manager and karta of joint Hindu family constituted by himself and his sons. Sri Radhey Shyam, Defendant-Appellant was said to be the tenant of the property in suit situate at Rawat Para, Agra on a monthly rent of Rs. 27/8/- . It was alleged that the father of he Plaintiff had determined the tenancy of the Defendant and had also filed suit No. 756 of 1952 in the court of Munsif, Agra for recovery of rent and for ejectment as well as for pendente lite and future mesne profits. That suit was decreed on 13-8-1954 but only for the recovery of arrears of rent for two months, namely, September and October 1952. The suit was dismissed as regards the relief of ejectment. It was not indicated whether the suit for recovery of mesne profit and damages was decreed or dismissed. Against that decree the Plaintiff's father filed an appeal which was registered as Civil Appeal No. 226 of 1954 and was decided by Judge Small Causes, Agra on 16-1-1957. The learned Judge decreed the Plaintiff's suit for ejectment also. In pursuance of the decree of the appellate court, Plaintiff took possession of the suit property from the Defendant on 25-7-1958. It was then alleged that as the Defendant had remained in possession of the property till 25-7-1958, he was liable to pay demages for use and occupation from 1-11-1952 upto 25-7-1958. Such amount as was said to have become barred by time was given up and suit was filed for recovery of the amount which was not barred by time. 4. Such amount as was said to have become barred by time was given up and suit was filed for recovery of the amount which was not barred by time. 4. This suit was contested by the Defendant on the grounds inter alia that the Plaintiff did not constitute a joint Hindu family with his father Mangoo Mai and the property was self acquired property of the latter. Suit was incompetent for want of succession certificate. Plaintiff's father had filed appeal No. 226 of 1954, referred to before, in respect of relief of ejectment only and not in respect of his claim for pendente lite and future mesne profits. This being so, the Plaintiff must be deemed to have abandoned that part of his claim and consequently, the instant suit was barred by Order XXIII Rule 1 and Order II Rule 2 Code of Civil Procedure. A second appeal was said to have been filed against the judgment of the first appellate court and that was still pending. The claim of the Plaintiffs, was said to be barred by limitation. Plaintiff was not entitled to claim any interest and further that Plaintiff's suit was barred by Section 11 Code of Civil Procedure. It was also alleged that the suit as framed was not maintainable and the court had no jurisdiction to entertain the same. 5. The trial court found that it was not necessary for the Plaintiff to obtain any succession certificate; that the suit was not barred by Order XXIII, Rule 1 of the CPC or Order II, Rule 2 of the Code of Civil Procedure. Nor was the suit barred by Section 47 or Section 11 Code of Civil Procedure. The claim of the Plaintiff was found to be within time and also that the court had jurisdiction to entertain the suit. On such findings the trial court decreed the Plaintiff's suit. 6. Before the lower appellate court, as it appears from the order of the learned Judge, the Learned Counsel for the Defendant Appellant did not challenge the findings of the learned trial court in so far as the questions of succession certificate, Order XXIII, Rule 1 and Order II, Rule 2 of the CPC were concerned. It was also not pressed that the suit was barred by Section 47 of the Code of Civil Procedure. Nor were the questions of jurisdiction or interest pressed. It was also not pressed that the suit was barred by Section 47 of the Code of Civil Procedure. Nor were the questions of jurisdiction or interest pressed. It was also stated before the lower appellate court that the second appeal from the earlier suit referred to above had been dismissed by this Court. Only two points were pressed before the lower appellate court. The first point was that a major portion of the claim was barred by time and the second point pressed was, that the suit was barred by Section 11 of the Code of Civil Procedure. 7. The lower appellate court came to the conclusion that the suit was governed by Article 120 of the Indian Limitation Act and not by Article 109 of the Indian Limitation Act. This being so, the Plaintiff's claim was found to be within time. On the other point, the lower appellate court came to the conclusion that the suit of the Plaintiff was not barred by res-judicata. The lower appellate court accordingly dismissed the appeal with costs. 8. Aggrieved by the decision of the courts below, the Defendant-Appellant has filed the instant second appeal in this Court. 9. The two points that were pressed before the lower appellate court have again been pressed before us. In the first place, it has been contended that the claim of the Plaintiff is barred by law of limitation and the Article that applied to the suit, was not Article 120 but Article 109 of the Indian Limitation Act. It has not been urged that any Article of the Indian Limitation Act other than Article 109 applied to the present case. We have, therefore, to examine whether Article 109 of the Indian Limitation Act is applicable to the facts of the present case and in case, we come to the conclusion that Article 109 does not apply then in the absence of any other suggestion, the residuary Article 120 of the Indian Limitation Act must be held to apply. Article 109 is quoted below: 109. For the pro. Three When the fits of immovable years profits property belonging to the Plaintiff which had been wrongfully received by the Defendant. are received. Article 109 is quoted below: 109. For the pro. Three When the fits of immovable years profits property belonging to the Plaintiff which had been wrongfully received by the Defendant. are received. The expression "mesne profits" has been defined in Section 2 Clause 12 of the CPC which is as follows: 'mesne profits of property' means those profits which the person in wrongful possession of such property actually received or might with ordinary deligenece have received therefrom, together with interest on such profits but shall not include profits due to improvements made by the person in wrongful possession. There is, therefore, no difficulty in coming to the conclusion that the expression "profit." used in Article 109 of the Indian Limitation Act includes mesne profits as defined by Section 2(12) of the Code of Civil Procedure. The only question which arises is as to what is the implication of the expression "received" used twice in Article 109 of the Indian Limitation Act. On the facts of the present case, it is clear that the Defendant-Appellant is not alleged to have received any profit in respect of the property in suit from anybody else. The Defendant himself continued to enjoy the property and consequently there was no occasion for receiving any profit from anybody else. Is the word "received" in Article 109 to be read as synonym to the word "accrued"? If the expression "received" in Article 109 of the Indian Limitation Act also includes "accrual" of profits then certainly Article 109 would be the appropriate Article to apply to the present case. On the other hand if it is not so, then it is equally clear that Article 109 of the Indian Limitation Act would not be applicable. After hearing the Learned Counsel for the parties and considering the decisions relied upon by them, to which we shall refer hereafter, we have come to the conclusion that, for the application of Article 109, it is necessary that the Defendant should have received profits in respect of property belonging to the Plaintiff from some body else and wrongfully. If that be so, then the time for filing suit would be three years from the time when profits were received. We have already pointed out that that is not so on the facts of the present case. If that be so, then the time for filing suit would be three years from the time when profits were received. We have already pointed out that that is not so on the facts of the present case. In our view, therefore, Article 109 of the Indian Limitation Act would not apply and in the absence of any other suggestion, Article 120 of the Indian Limitation Act must be applied to the facts of the present case. 10. Learned Counsel for the Appellant has referred to the decision in the case of Ram Charan Sahu and Another Vs. Goga and Others and to Anr. decision in the case of Kunwar Mohammad Ubaid-Ullah Khan v. Kunwar Mohammad Abdul Jalil Khan 1937 AWR 539. The principles laid down in those two cases are that even where a claim to mesne profit is in dispute, the starting point for a suit for mesne profit would be the date when the profits are received and that limitation cannot start, instead, from the date of adjudication of the rights between the parties. The period of limitation could not be deemed to be suspended till the adjudication of the rights of the parties. The question before us as indicated above is a different one. The principle laid down by the Privy Council in the case of Mian Feroz Shah v. Mohammad Akbar Khan 1939 AWR (PC) 148, which has also been relied upon by the Learned Counsel for the Appellant is that it was not prudent to depart from a long series of decisions to the effect that Article 109 applied to a claim for mesne profit. It was also observed that it was not necessary in that case before the Privy Council to regard the language of the Article as limiting its applications to claim to such profits as have been actually received and require recourse to some other Article to be had where part of the sums claimed are claimed on the ground of wilful default. According to their Lordships of the Privy Council that question did not arise in the case before them. In our opinion, therefore, no assistance can be taken from that decision, in answering the question that has arisen before us. 11. The Learned Counsel then referred to the case of L. Janakirama Iyer and Others Vs. P.M. Nilakanta Iyer and Others, AIR 1962 SC 633 . In our opinion, therefore, no assistance can be taken from that decision, in answering the question that has arisen before us. 11. The Learned Counsel then referred to the case of L. Janakirama Iyer and Others Vs. P.M. Nilakanta Iyer and Others, AIR 1962 SC 633 . The relevant observation made in that case is quoted hereunder: Normally there is no doubt that a successful Plaintiff would be entitled to mesne profits for three years and not more but in the present case we are dealing with a claim made by the Plaintiffs on behalf, of the rust and the decision in their favour has rendered it necessary to adjust equities between the trust and the respective alienees, alienations in whose favour have been set aside as invalid.... 12. We have already indicated our view earlier that the expression "profits" used in Article 109 of the j Indian Limitation Act also includes "mesne profits". The Learned Counsel for the Appellant has also referred to the case of Fateh Chand Vs. Balkishan Das, AIR 1963 SC 1405 . We have failed to appreciate the relevancy of that decision to the question we are called upon to consider in the present case. 13. The Learned Counsel for the Respondent has urged that the actual receiving of profits is condition precedent to the application of Article 109 of the Indian Limitation Act to a case. According to the Learned Counsel, the expression "accrued" cannot be equated with the expression "received". The Learned Counsel for the Respondent has placed before us the case of Colquhoun v. Brooks (1888) 21 QBD 52. That was a case which had arisen out of income tax matter. The precise observation relied upon by the Learned Counsel made in that case is as follows: In the first place, I would observe that the tax is in respect of 'profits or gains arising or accruing.' I cannot read those words as meaning 'received by'. If the enactment were limited to profits and gains 'received by' the person to be charged, that limitation would apply as much to all Her Majesty's subjects as to foreigners residing in this country.... I think, therefore, that the words 'arising or accruing' are general words descriptive of a right to receive profits. 14. If the enactment were limited to profits and gains 'received by' the person to be charged, that limitation would apply as much to all Her Majesty's subjects as to foreigners residing in this country.... I think, therefore, that the words 'arising or accruing' are general words descriptive of a right to receive profits. 14. Next the Learned Counsel for the Respondent relied on the decision of the Supreme Court in the case of Commissioner income tax Bombay v. Ahmedbhai Umarbhai and Company Bombay 1950 ITR 472 . In that case also, the implication of the word "received" as distinguished from the implication of the word "accrued" or the word "arisen" was considered. In that case reference was made to the case of Rogers Pyatt Shellac and Company v. Secretary of State for India ILR 52 Cal. 130 and it was noticed that in the last mentioned case, it was pointed out by Mukherjea, J. that etymologically the word "accrues" connotes the idea of a growth, addition or increase by way of occasion or advantage, while the word "arises" suggests the idea of growth or accumulation with a tangible shape so as to be receivable. The two expressions denoted almost the same idea and the difference only lies in the fact that one was more appropriate than the other when applied to particular cases. It was then observed that it was clear that the words "accrues" or "arises" were used in contradistinction to the word "received" and both the earlier words represent a stage anterior to the point of time when the income becomes receivable. That decision is an authority for the proposition that the implication of the expression "received" is different from the implication of the words "accrued" or "arisen". The view taken by Hon. Pathak, J. sitting singly in the case of Partap Narain v. Ramdhan Das 1946 AWR (HC) 198 to the effect that a suit to recover compensation for use and occupation from an ex-tenant who remains in possession after the determination of the tenancy without the consent of the landlord is governed by residuary Article 120 Indian Limitation Act is therefore the correct view. To the same effect is the view taken by Hon'ble Yorke, J. in the case of Mt. Sukhdei v. Lachhmi Narain 1946 AWR (HC) 516. To the same effect is the view taken by Hon'ble Yorke, J. in the case of Mt. Sukhdei v. Lachhmi Narain 1946 AWR (HC) 516. Both the learned Judges in the respective cases came to the conclusion that on such facts, the appropriate Article which could be applied is Article 120 of the Indian Limitation Act. 15. It has also been urged that the claim of the Plaintiff in the instant suit is not one for mesne profit but for damages. We find force in such submission of the Learned Counsel for the Respondent. Section 108(q) of the Transfer of Property Act provides that on the determination of the lease, the lessee is bound to put the lessor in possession of the property. It is also relevant to note that Section 108 Clause (h) provides that the lessee may even after the determination of the lease remove at any time whilst he is in possession of the property leased but not afterwards, all things which he has attached to the earth : provided he leaves the property in the state in which he received it. It is the breach of this statutory duty which has resulted in damages to the Plaintiff and the present suit is a suit for the recovery of such damages. 16. On the above basis, we are of the opinion that Article 109 of the Indian Limitation Act does not apply to the present case and the view of law taken by the courts below is, therefore, correct. 17. The other submission made by the Learned Counsel for the Appellant is that in as much as in the earlier litigation between the parties, to which we have already made a reference earlier, the learned trial court did not indicate whether it was dismissing or decreeing the Plaintiff's suit, for mesne profit, pendente lite and future. The submission of the Learned Counsel for the Appellant is that a relief not expressly granted must be deemed to have been refused. It is, therefore, urged that the result of the trial court decision in the earlier litigation was that the claim for pendente lite and future mesne profit stood dismissed. We agree with the Learned Counsel for the Appellant. It is, therefore, urged that the result of the trial court decision in the earlier litigation was that the claim for pendente lite and future mesne profit stood dismissed. We agree with the Learned Counsel for the Appellant. If a decree is silent with regard to a particular relief, that relief must be deemed to have been refused, as is obvious from the provisions of Section 11 explanation (v) of the Code of Civil Procedure. Apart from such consideration, it is also clear in this case that the trial court in the earlier suit gave a finding that the Plaintiff in that suit was not entitled to mesne profit. As the trial court in that case had taken the view that there was no illegal subletting by the Defendant, the Defendant was not liable to be ejected and the tenancy could not be terminated. If the tenancy did not terminate, no question of allowing any mesne profit to the Plaintiff could arise. It has also been submitted by the Learned Counsel for the Appellant that against the decree of the trial court in the earlier litigation, although the Plaintiff filed an appeal before the lower appellate court yet his appeal was confined to the relief of ejectment only. No relief in respect of mesne profit was claimed in that appeal. On that basis, it has been urged that the Plaintiff must be deemed to have submitted to the implied decision of the trial court in that case with regard to the claim of mesne profit and further that the result of omitting to file an appeal for recovery of mesne profits also should be deemed to be abandonment of that part of the claim by the Plaintiff. Learned Counsel for the Appellant relied on the Supreme Court decision in Bhagwati Prasad Vs. Shri Chandramaul, AIR 1966 SC 735 . According to the Learned Counsel for the Appellant that decision lays down the proposition that where ejectment of the Defendant has been allowed, it becomes the duty of the court to pass a decree for mesne profits, pendente lite and future and such a decree must be passed. The observation made in that case relied upon by the Learned Counsel for the Appellant is as hereunder: But we do not see how the High Court's decree in relation to future mesne profits can be sustained. The observation made in that case relied upon by the Learned Counsel for the Appellant is as hereunder: But we do not see how the High Court's decree in relation to future mesne profits can be sustained. Once it is held that the Plaintiff is entitled to eject the Defendant, it follows that from the date of the decree granting the relief of ejectment to the Plaintiff, the Defendant who remains in possession of the property despite the decree, must pay mesne profits or damages for use and occupation of the said property until it is delivered to the Plaintiff. A decree for ejectment in such a case must' be accompanied by a direction for payment of the future mesne profits or damages.... It is clear that their Lordships of the Supreme Court were net laying down any proposition regarding the provisions of, the Code of Civil Procedure. It may be noticed that the words used by the Supreme Court are that "a decree for ejsctment in such a case must be accompanied by a direction for payment of future mesne profit for damages." On the facts of that case, the view taken by the Supreme Court was, that it was necessary to pass a decree in respect of future mesne profits or damages also. In head note "b" of that case, a mention, of Order XX, Rule 12 of the CPC has been made although it is conspicious to note that their Lordships were not considering that provision at all. 18. As against the above submission of the Learned Counsel for the Appellant, the Learned Counsel for the Respondent has urged that as a matter of general rule, a suit can be filed only in respect of a cause of action which had already accrued and not in respect of a cause of action which may accrue after the filing of the suit. The cause of action for recovery of pendente lite and future mesne profits had not accrued on the date that the earlier suit was filed. No sum had fallen due to the Plaintiff in respect of future period and consequently, no relief in respect of mesne profits for the period after the institution of the suit could be claimed as a matter of right. No sum had fallen due to the Plaintiff in respect of future period and consequently, no relief in respect of mesne profits for the period after the institution of the suit could be claimed as a matter of right. It in only by virtue of Order XX Rule 12 of the CPC that the court could under certain circumstances grant decree for pendente lite and future mesne profit or damages. In case the court decides to grant a decree for pendente lite and future mesne profit or damages, it is open to the court to direct an enquiry to be made with regard to the rate and amount of the same. The omission of the court in not making an enquiry as required by Order XX Rule 12 of the CPC and in not granting a decree for pendente lite and future mesne profits or damages could not result in creating a bar of res judicata against the claim for such mesne profits or damages, after they had fallen due to the Plaintiff. Learned Counsel for the Respondent has relied on the case of Parsotam Ram and Another Vs. Mangal Ram . That case was decided by a Division Bench of this Court. In that case, the claim of the Plaintiff to damages or mesne profit was denied on the ground that in a former suit, mesne profits were not granted to the Plaintiff. The Division Bench noticed that although in the former suit, there was an issue to the effect whether the Plaintiffs were entitled to damages and if so how much. In the order passed in that suit, no relief with regard to mesne profits was granted. After noticing that, the Division Bench proceeded to observe as follows: Now what the Court might have done in suit No. 17 of 1923 was to direct an inquiry into the amount of mesne profits under Order 20, Rule 12. But it did not do so. After noticing that, the Division Bench proceeded to observe as follows: Now what the Court might have done in suit No. 17 of 1923 was to direct an inquiry into the amount of mesne profits under Order 20, Rule 12. But it did not do so. The question therefore is "Does the omission of the Court to direct such an inquiry act as res-judicata against the Plaintiff; in the present suit?" This question is answered by authority as there is a Full Bench ruling of this Court reported in Ramdayal v. Madan Mohan Lal 21 ILR All 425 (1899) in which it was held in a similar case that there is no bar by res judicata against a Plaintiff bringing a subsequent suit for mesne profits where the court in the former suit has failed to adjudicate on that relief. Accordingly, we consider that the Plaintiffs are entitled to mesne profits so far as not barred by limitation. 19. In the case of Gopal Krishna Pillai and Ors. v. Meenakshi Ayal and Ors. 1967 ALJ 239, the Supreme Court took the view that with regard to past mesne profits, the Plaintiff has an existing cause of action on the date of the institution of suit, but with regard to future mesne profit, the Plaintiff has no cause of action on the date of institution of suit and it is not possible for him to plead that cause of action or to value it or to pay court fee thereon at the time of the institution of the suit. It was also observed that the Plaintiff could obtain relief in respect of the future cause of action only in a suit to which the provisions of Order XX, Rule 12 of the CPC applied. In suits to which the provisions of Order XX, Rule 12 of the CPC applied, the court has a discretionary power to pass a decree directing an inquiry into the future mesne profits and the court may further grant this general relief though it is not specifically asked for in the plaint. 20. In the case of Muhammad Ishaq Khan v. Muhammad Rustam Ali Khan ILR 40 ll. 292, a Division Bench of this Court constituted by Hon. Sir Henry Richards, C.J. and Hon. Pramada Charan Banerji, J. the view taken was that such a suit is not barred by res judicata. 20. In the case of Muhammad Ishaq Khan v. Muhammad Rustam Ali Khan ILR 40 ll. 292, a Division Bench of this Court constituted by Hon. Sir Henry Richards, C.J. and Hon. Pramada Charan Banerji, J. the view taken was that such a suit is not barred by res judicata. In that case, the Plaintiff had sued earlier for possession of immovable property and mesne profit upto the date of the suit and also for mesne profits pendente lite and future. In that earlier case, the court gave a decree for mesne profits upto the date of the suit but the decree was silent as to mesne profits, pendente lite or future. It was held that subsequent suit for mesne profits for that period was not barred by res judicata. 21. In the case of B. Ram Karan, Singh (dead) and Others Vs. Nakchhad Ahir and Others , a Special Bench consisting of Hon. Sulaiman, Acting C.J., Hon. Sen and Hon. Niamatullah, J., it was held that a claim for mesne profits accruing subsequent to the institution of the previous suit, is a claim based on a different cause of action and is not barred by the provisions of Order 2, Rule 2 of the Code of Civil Procedure. It was further held that although no doubt Under Order XX, Rule 12 CPC a court may pass a decree directing an enquiry into future mesne profits, the provision is only directory and not mandatory giving the court direction to pass a preliminary decree for mesne profits and does not compel a Plaintiff to unite the claim for future mesne profits in a suit for recovery of possession to immovable property. 22. For all the above reasons, we are of the opinion that the claim of the Plaintiff cannot be said to be barred by res judicata. 23. The last submission of the Learned Counsel for the Appellant was with regard to interest. According to the Learned Counsel, the Defendant-Appellant was not liable to pay any interest on the amount that may be found to be recoverable by the Plaintiff. From the judgment of the lower appellate court, however, we find that this contention was given up before that court by the Defendant Appellant. The question of interest is a question of fact or at least a mixed question of fact and law. From the judgment of the lower appellate court, however, we find that this contention was given up before that court by the Defendant Appellant. The question of interest is a question of fact or at least a mixed question of fact and law. If the point was given up by the Defendant-Appellant before the lower appellate court we see no justification in permitting him to go back on his statement and to urge that point before us in second appeal. 24. No other question has been urged before us in this second appeal. 25. The second appeal is dismissed with costs. Appeal dismissed.